Appeal court overturns Surrey sexual assault aquittal, orders new trial

Appeal court judge says Surrey court failed to consider evidence of ‘passive dishonesty’

If a person consents to have sex on condition their partner wears a condom, but their partner does not wear one, has a crime been committed?

A man who was acquitted of sexual assault by a Surrey provincial court judge will be tried once again after B.C.’s Court of Appeal overturned that verdict.

The trial judge had found no evidence of active deception.

“The question of this appeal is a simple one,” Justice Harvey Groberman explained. “Where a person consents to engage in sexual intercourse on condition that their sexual partner wear a condom, can that partner ignore the condition without being subject to criminal liability?”

Ross McKenzie Kirkpatrick was charged with sexual assault after having sex with a woman he’d met online without wearing a condom, which the court heard had been a condition of her consent.

They had sex twice, the court heard, and on the second occasion the accused, unbeknownst to the complainant, didn’t wear a condom. There is a publication ban on information that could identify the complainant.

The Crown argued before the trial judge that the consent was vitiated, or destroyed, by fraud but the judge found no evidence of fraud. The Crown appealed his decision, successfully.

Groberman found that the trial judge misinterpreted a Supreme Court of Canada case which he said, if “properly” interpreted, allows one to “validly limit their consent to sexual intercourse by insisting that a condom be used.”

The lower court judge’s interpretation, Groberman stated in his reasons for judgment, “would leave the law of Canada seriously out of touch with reality, and dysfunctional in terms of its protection of sexual autonomy.”

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Groberman said sexual intercourse with a condom is “not the same sexual activity as sexual intercourse without a condom” and that the trial judge was “wrong in giving effect to the no-evidence motion.”

“The fact that he had, at an earlier time, agreed to use a condom is not evidence of fraud. A failure to keep a promise is not, in and of itself, fraudulent — if it were, every breach of contract would amount to a fraud,” Groberman said. “I conclude that the judge made no error in finding that there was no evidence of fraud on the part of the accused in this case.”

But, he added, “as there was evidence indicating that the accused engaged in sexual intercourse without a condom, knowing that the complainant required him to wear one, the judge erred in granting the no-evidence motion.

“In the result, I would set aside the acquittal and remit the matter to the provincial court for a new trial.”

While Appeal Court Justice Elizabeth Bennett found the trial judge was correct to find no evidence the complainant didn’t voluntarily agree to “the sexual activity in question here,” she also found there was evidence her agreement to sexual activity “was obtained by fraud and the trial judge erred in holding otherwise.

“In concluding that there was no evidence of agreement to the sexual activity of fraud that vitiated consent, the trial judge made findings of fact in relation to the element of dishonesty,” Bennett decided. “Therefore, in my view, there must be a new trial before a different judge. I would allow the appeal and order a new trial.”

“In my view, the trial judge erred in law in failing to apply the correct test for fraud, and failing to consider evidence of passive dishonesty,” Bennett said.

Justice Mary Saunders also weighed in.

“In my view, there was some evidence of fraud which obviated a no-evidence motion,” Saunders said. “For this reason, also, I consider the appeal should be allowed and the matter remitted to the Provincial Court for a new trial.”